Political signs

Why the First Amendment usually doesn't apply

An HOA is a private organization created by contract among owners, not a branch of government. Constitutional protections like the free speech clause generally restrain only government action, not private contracts, a rule courts call the state action doctrine. That means a rule against yard signs, including political ones, is usually enforceable the same way any other use restriction is: as a matter of contract, not constitutional law.

This surprises a lot of new board members, because free speech feels like something that should follow a person onto their own property. It does, against the government. Against a private association enforcing its own recorded rules, the default answer in most states is that the First Amendment simply does not apply.

New Jersey is a documented exception

New Jersey is the one state in this research base where that default has been tested and lost. An association's rule banned all residential signs except "For Sale" signs. A homeowner used his own windows and door to display political campaign signs, and the association ordered them removed under that rule.

"the minimal interference with [the association's] private property interest against [the homeowner's] free speech right to post political signs on his own property"

Source: Mazdabrook Commons Homeowners' Ass'n v. Khan, 210 N.J. 508 (2012), Justia

Weighing that balance, the New Jersey Supreme Court held the sign policy violated the free speech clause of the New Jersey Constitution. This is a state constitutional holding, specific to New Jersey's own constitution, not a reading of the federal First Amendment.

What this means for your board

Before assuming you can ban political signs outright, or assuming you cannot, check your own state's constitution and statutes. A state may extend free-speech-style protection to homeowners against private associations, and most states currently do not. Do not rely on Mazdabrook if your community sits outside New Jersey.

If your state does allow a ban, or allows regulation short of a ban, keep any restriction narrow, applied evenly, and tied to a real interest such as safety or uniform appearance, the same kind of balance New Jersey's court weighed on the association's side. Do not assume a specific timing window, such as signs permitted only near an election, or a specific size limit is standard; neither was verified for this lesson. Ask your association's attorney what your state allows before writing or enforcing a political sign rule.